First Amendment Did Not Bar Publicity Rights Claims Against Video Game Maker

This posting was written by Thomas A. Long, Editor of Wolters Kluwer IP Law Daily.

The First Amendment did not bar claims by retired National Football League players alleging that video game developer Electronic Arts Inc. (“EA”) violated their rights of publicity under California law by using their likenesses in the EA video game, Madden NFL, without their authorization, the federal district court in San Francisco has ruled. The court also denied EA’s motion to strike the complaint pursuant to California’s Anti-SLAPP (“Anti-Strategic Lawsuit Against Public Participation”) law.

Background

The Madden NFL game featured highly realistic simulations of actual NFL stadiums, uniforms, and current team rosters, including active players’ likenesses and biographical information, which were covered by various licenses that did not cover the retired players.

Recent versions of the game allowed players to select “historical” NFL teams, with rosters that did not include the retired players’ names, but featured game “avatars” that closely resembled the retired players, in terms of height, weight, skin tone, position, years in the league, and athletic ability. For purposes of its motions to dismiss and strike, EA accepted the retired players’ allegations that it used protectable elements of their likenesses in Madden NFL.

Three retired players—Michael Davis, Vince Ferragamo, and Billy Joe Dupree—filed a putative class action lawsuit on behalf of themselves and approximately 6,000 other former NFL players whose likenesses allegedly appeared in certain editions of Madden NFL. They asserted violations of California’s statutory right of publicity under Civil Code Sec. 3344 and violations of California’s common law right of publicity.

First Amendment

EA contended that the game, as an expressive work, was protected by the First Amendment to the extent that it contained significant transformative elements, such that the value of the game did not derive primarily from the fame of the players.

However, according to the court, the “transformative use” test focuses on the reproduction of the celebrities’ likenesses, rather than on the larger work. In the Madden NFL game, the retired players’ likenesses appeared in their conventional role as football players. EA failed to articulate any expressive significance inherent in this depiction.

The game’s literal projection of the retired players’ likenesses into avatar figures was insufficient to confer constitutional protection, in the court’s view. The fact that the likenesses could be controlled or manipulated by game players did not change the analysis; the avatars were still realistic depictions of the retired players.

The court also rejected EA’s argument that its use of the players’ likenesses in Madden NFL was protected because it concerned a matter of public interest. Although the reporting and discussion of factual information about professional sports implicated the public interest, the alleged use of the retired players’ likenesses went well beyond simply reporting or publishing statements of historical fact.

There was very little in the game that resembled traditional reporting. The game play of Madden NFL did not report, or even re-create, recent or historical games. Each game was within the players’ control; the only historical aspect of the game was the retired players’ likenesses, the court said.

EA’s use of the retired players’ likenesses was not exempt from liability under the California publicity rights statute’s provision of immunity for the use of a name or likeness in connection with “public affairs.” Game play did not report on or relate “real life” occurrences, other than a minimal amount of statistical information about each player. The game was entirely fictional, the court said. Accordingly, the court denied the motion to dismiss the claims.

Anti-SLAPP Law

California’s Anti-SLAPP law provides for dismissal of any claims for relief that are primarily based on defendants’ activities in furtherance of their right to free speech relating to an issue of public concern. Once a defendant makes a prima facie showing that free speech protections are implicated, the burden shifts to the plaintiff to demonstrate a “reasonable probability” of prevailing on the underlying claims by stating and substantiating a legally sufficient claim.

Although video games were expressive works entitled to First Amendment protection, EA had conceded for purposes of its motions that Madden NFL used the retired players’ likenesses without authorization. EA had not otherwise attacked the adequacy of the allegations against it. Therefore, the court said, the retired players had satisfied their burden of stating and substantiating a legally sufficient claim. The motion to strike was denied.

The March 29 decision in Davis v. Electronic Arts, Inc. will be reported in CCH Advertising Law Guide.